Federal Appeal

Immigration and Citizenship

Constitutional issues

Charter of Rights and Freedoms

Applicant suffering from general separation not severe enough to meet high threshold set by jurisprudence

Applicant was 43-year-old Canadian citizen, who was born in Bangladesh and entered into Canada in 1994 under sponsorship of her husband. Applicant’s father applied for permanent residence under parent-grandparent program with applicant as sponsor. At time of application, applicant was aware her case would be used as test case to challenge minimum necessary income (MNI) requirement under governing regulations. Visa officer refused application on basis that applicant did not meet MNI requirement. Immigration Appeal Division (IAD) of Immigration and Refugee Board denied applicant’s appeal to sponsor father, mother and five siblings for permanent residence in Canada as members of family class. Applicant unsuccessfully brought application for judicial review. Applicant appealed. Appeal dismissed. Provisions in Immigration and Refugee Protection Regulations did not violate section 7 or 15 of Canadian Charter of Rights and Freedoms. Given applicant’s rights to liberty and security were not engaged and that there was no causal connection between MNI requirement and alleged harm, there was no need to determine whether principles of fundamental justice had been breached. In light of fact that IAD did not misapprehend law and was owed deference with respect to its findings of fact that applicant did not take medication despite suffering form depression and that she dismissed possibility of travelling to Bangladesh without her family to solve problem, intervention from appellate court was not warranted. IAD reasonably concluded that applicant was merely suffering from general separation and it was not severe enough to meet high threshold set out by jurisprudence. IAD did not dismiss applicant’s s. 15 claims because she failed to identify proper comparator group but rather, IAD rejected claim because applicant could not demonstrate that she was excluded from sponsoring her parents because of distinction based on asserted grounds. Applicant’s evidence fell short of meeting burden and for that reason it was not necessary to move to second part of test to determine whether any distinction created by MNI requirement was discriminatory.

Begum v. Canada (Citizenship and Immigration) (2018), 2018 CarswellNat 5578, 2018 FCA 181, J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 1905, 2017 CarswellNat 4529, 2017 FC 409, 2017 CF 409, James Russell J. (F.C.).

Law Times Poll

Ontario Premier Doug Ford has announced that real estate lawyer Doug Downey will be Ontario’s new attorney general. Do you expect Downey to take a substantially different approach to his portfolio than his predecessor in the role?